TRANSNASIONAL EXPRESS SDN BHD V MOHD ROSEDI HASSAN [2005] 3 ILR 734 INDUSTRIAL RELATION DEPARTMENT KELANTAN, K RAMAKRISHNAN

Facts Claimant is a Transnasional bus driver, alleged to have sexually harassed(touching thigh) two customer of company while in the bus. Claimant denied the allegation as he was sleeping at that period. He was summarily dismissed as Domestic Inquiry outcome and he contended that the dismissal was without just cause and excuse.

Issue Whether dismissal was with just cause and excuse?

Held -Claimant did not complaint to co-driver of the bus or other passenger after the incident took place. 1st complainants husband admitted lying in court that the complaint letter was written by him instead of his wife. Complainant did not make effort to identify culprit. Claimants evidence was corroborated by co-driver Shukri but complainant evidence was not corroborated. -Since complainant evidence was not corroborated, the evidence is not reliable. Remedy granted to Claimant.

*Per incuriam: burden of proof is higher than that of burden of probabilities.

SUNWAY LAGOON CLUB BHD V MD NOH MAT TAHIR [2007] 2 ILR 273 IC KUALA LUMPUR, AMELIA TEE HONG GEOK ABDULLAH Facts Claimant was alleged to have sexually harassed a 17 years old girl that is a customer of the Club by touching her private parts during massage. On 10 May 2002, a show cause letter was given to him and required him to respond in written explaination. Subsequently, Domestic Inquiry was conducted and he was dismissed. Claimant contended that the dismissal was without just cause and excuse.

Issues Whether sexual harassment was established on balance of probabilities? Whether dismissal was with just cause or excuse?

Held - Notes of Inquiry encountered difficulty as they had not been typewritten and not all handwritten notes being legible. Statement of Case marked Appendix A and JO was never produced with the notes of inquiry. Incomplete notes were tantamount to inaccurate notes. - DI had not followed established and accepted procedures. Officer of DI straightaway questioned the claimant, before evidence of Clubs witnesses recorded. Leading questions was asked during questioning of complainant. Claimants answer recorded but subsequently crossed out. There is serious concern raised about the regularity and fairness of inquiry. This is prejudicial to claimant. - The complaint is uncorroborated as the young girl would have told her parents. Instead, she told her 47 years old boyfriend which was also her neighbor. Why would a young girl tell such intimate stuff to a boyfriend? - Also, the complaint was in fact not written by her but by her boyfriend. The complainant sit down drink coffee with the claimant for 43 minutes immediately after the assault. This is not the act of person who is shocked and embarrassed over the assault. There is no independent corroboration or any corroboration of complainants evidence. - Claimant dismissed without just cause or excuse.

JAMAN SAIDIN V HOTEL ISTANA [2006] 2 ILR 1182 IC KUALA LUMPUR, MOHD AMIN FIRDAUS ABDULLAH Facts Claimant as employed by Hotel Istana as Executive Chef. He had credible and rich international working experience. He was alleged to have sexually harassed a trainee by virtue of touching his private parts. Subsequently, he was dismissed as domestic inquiry outcome through termination letter dated 21 February 2002. Claimant contended that he had been unfairly dismissed as the sexual harassment is fabrication of the trainee and staff members of the company. He was unpopular in the company as his style of working is different from others member. Company failed to file appearance and statement of reply, despite repeated notification to attend court. This matter heard ex parte the company.

Issues Whether Domestic Inquiry was properly constituted? Whether dismissal is without just cause or excuse?

Held - Domestic Inquiry was held improperly as Azizule Ahmad which alleged being sexually harassed by Claimant was not summon for the Claimant to cross examine. This is because charge on sexual harassment is on the basis of Azizule Ahmad allegation. Claimant had even made police report denying allegation. - Claimant is unpopular to certain staff members as he help in reducing operation cost meanwhile they are making profits out of the expense of company. There is an incident where 25 kilos for heating fuel for food was billed but only 20 kilos delivered to the company. Claimants claim possessed merit and repeated failure to file appearance strengthen courts findings on claimants claim. - Termination was without just cause or excuse. Reinstatement and backwages from date of dismissal till the date of reinstatement granted.

AHMAD IBRAHIM DATO SERI MOHD GHAZAU V AUGUSTLAND HOTEL SDN BHD [2010] 2 LNS 1460 IC PERAK, TUAN FREDRICK INDRAN X.A. NICHOLAS Facts Timeline 1.11.2000 - Claimant was employed as Assistant Supervisor in the Food & Beverages Department. 1.2.2002 - Claimant was promoted to Supervisor position. 22.1.2007 Domestic inquiry was convened on alleged sexual skullduggery (touched lips, smacked buttock of COW1) by Claimant. 26.1.2007 Claimant dismissed from his job.

Issues Whether Domestic Inquiry is valid? Whether dismissal was with just cause or excuse?

Held -On the said notes of DI mark A, it is not a complete account of the whole DI proceedings. Further on page 12, the note abruptly ends with cryptic comment Battery Ran Low, Tape Finally Stopped. This document is no more than a partial reflection of inquiry. -The person who stenographed or transcribed the notes was not called a witness before the Court, signature of members of panel was not found on the said documents (page 4 to 12). The validity of notes on page 4 to page12 was not confirmed by panel members. DI was invalid. - No contemporaneous complaint was made by COW1 and the person (Nittiya) present in place of incident was not called as witness. There were contradictories statement by COW1 and Nittiya whether Claimant touched lips or pinched cheek, intoxicated or vice versa. COW1 statement is uncorroborated though COW2 had been call to support its case. - COW1 made official complaint to Company only after 2 days of the alleged incident which lead to contemplation that grievance as an afterthought. Credence was lent to Claimants contention that he was victim of COW1s wrath. - On balance of probabilities, Claimant dismissal was without just cause or excuse.